U.S. v. Stewart

• Decision Date: 23 August 2005
• Docket Number: No. 03-10662.,03-10662.
• Citation: 420 F.3d 1007
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert D. STEWART, Jr., aka Robert Wilson Stewart, Bob Stewart, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1007

420 F.3d 1007

UNITED STATES of America, Plaintiff-Appellee, v. Robert D. STEWART, Jr., aka Robert Wilson Stewart, Bob Stewart, Defendant-Appellant.

No. 03-10662.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2004.

Filed August 23, 2005.

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Thomas E. Haney, Esq., argued the cause for the appellant.

Patrick Schneider, Esq., Office of the U.S. Attorney, argued the cause for the appellee; Paul Charlton, Michael T. Morrissey, and Soo C. Song, Office of the U.S. Attorney, were also on the brief.

Appeal from the United States District Court for the District of Arizona Howard D. McKibben, District Judge, Presiding. D.C. No. CR-03-00061-HDM.

Before: O'SCANNLAIN, COWEN,^* and CBEA, Circuit Judges.

BEA, Circuit Judge:

We are asked to determine whether certain words, spoken under certain circumstances, constitute criminal threats of harm against a federal judge and are not protected by the First Amendment. We are also asked to determine what quantum of evidence the Government must present to establish that a defendant, who solicited another person to murder a federal judge, had the required criminal intent for the other person to commit the murder.

FACTS

Robert D. Stewart, Jr. appeals his convictions and sentence for threatening to murder a federal judge (Count 1), soliciting the murder of a federal judge (Count 4), and making material false statements to government agents investigating the threats and solicitation (Counts 2 and 3).¹ At trial, the Government elicited the following testimony:

Informant August Weiss, an inmate at an Arizona federal prison where Stewart was also incarcerated,² approached Special Investigative Agent Forrest Barton, who was stationed at the prison. Weiss told Agent Barton "there was an older inmate named Rob in his unit that was making some plans to hurt some federal officials." Agent Barton and Federal Bureau of Investigation ("FBI") Special Agent Mike Gallante met with Weiss; Weiss identified "Rob" as Stewart.

Shortly after Stewart's arrival at the prison, Stewart stated to Weiss that "[FBI] agents should be like strung up on light posts." Weiss asked him if he was serious, and Stewart responded, "[W]ell, it would be a nice thing." Stewart also asked Weiss if he "knew somebody that could have somebody done away with."

Stewart's statements wavered between targeting FBI agents or a judge, but then became specific: U.S. District Judge Roslyn O. Silver, who had presided at Stewart's earlier trial. Weiss testified Stewart stated "he wanted to string the motherfucker up and cut her throat, his throat, and make it like a copycat so that people would do the same thing."³ Stewart offered Weiss weapons and $100,000 as a reward if Weiss could arrange the killing. Stewart claimed the money would come from the Aryan Brotherhood.

Weiss agreed with Agent Barton and Special Agent Gallante to record secretly a conversation with Stewart, using a hidden digital recorder provided by the FBI. Weiss met with Stewart and recorded their conversation.⁴ During the meeting, Stewart asked if Weiss "could do it," meaning whether Weiss could "do the hit." Stewart offered weapons to be given as compensation to Weiss's brother-in-law to perform the hit (Weiss had invented a fictitious brother-in-law who would do the killing), and $100,000 to Weiss as a reward for arranging the hit. Stewart stated his sister had access to the weapons and could deliver them to Weiss's brother-in-law. Stewart stated the Aryan Brotherhood was also targeting the judge and would contribute money "to go in on the hit," and he again mentioned the "copycat" murder strategy. Stewart then described the victim as fifty-five years old, with blonde hair, having the name of "Silver," and located in Phoenix, Room 624. Weiss asked Stewart how he wanted the killing done, and Stewart made a cutting motion with his finger across his throat. After the meeting, Weiss immediately delivered the recording to Agent Barton and Special Agent Gallante.

Special Agent Gallante then interviewed Stewart twice. During the first interview, Special Agent Gallante told Stewart he had reason to believe Stewart was involved in a conspiracy to harm a federal judge. Stewart responded: "I'm not involved in anything like that, and especially I wouldn't want to harm my judge, Judge Silver, because I'm appealing my case. . . ." Special Agent Gallante asked Stewart whether he said "anything that could even be misinterpreted as a threat to a judge." Stewart denied saying anything, but mentioned he had overheard the Aryan Brotherhood "wanted to harm Judge Silver because she had sentenced one of their associates."

During the next interview, Special Agent Gallante again asked Stewart whether he said "anything which could have been misinterpreted by anyone regarding any threats to a judge." Stewart replied no, but stated Weiss had been asking a lot of questions about his case, and Weiss had said "something about his brother coming here to do something." Special Agent Gallante then played the portion of the recording in which Stewart identified Judge Silver and gave her physical description and location. Stewart became "visibly upset" by the recording. When Special Agent Gallante asked Stewart what he was referring to in that conversation, Stewart had no response. Over Stewart's objection, the recordings were played to the jury.

Judge Silver also testified for the Government. She presided over Stewart's previous criminal trial, in which Stewart was convicted and sentenced to prison for the federal firearm offenses. Judge Silver testified that during the previous trial, Stewart was initially respectful and polite, but as the trial progressed, his demeanor turned to what Judge Silver described as anger or "smoldering rage." She testified Stewart's change in demeanor was precipitated by her not permitting Stewart to pursue a particular line of defense, i.e., that the federal government had no jurisdiction or authority over Stewart. Judge Silver stated she never received any threats directly from Stewart but was so informed by the U.S. Marshals Service and the FBI. She also stated that, at the time Stewart spoke to Weiss, a reasonable description of her would be fifty-six years old, female, with blonde hair, and that her courtroom was on the sixth floor of the Phoenix courthouse, room number 604 or 624.

Following the Government's case-in-chief, Stewart brought a motion for judgment of acquittal on all counts, which the district court denied. Stewart then testified in his defense and denied making any threats regarding Judge Silver or soliciting her murder. Several character witnesses also testified Stewart had a reputation for truthfulness. The jury then found Stewart guilty on all counts. The district court denied Stewart's renewed motion for judgment of acquittal and sentenced Stewart to 60 months each on Counts 1, 2, and 3, to run concurrently, and 232 months on Count 4, to run consecutively to Counts 1, 2, and 3. Stewart timely appealed. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

DISCUSSION

Stewart raises multiple challenges to his convictions. We address each in turn.

I. Multiplicity of the Indictment

As a preliminary matter, Stewart contends Counts 1 and 4 are multiplicitous, and thus that his convictions on both counts violate the Double Jeopardy Clause. He makes the same claims as to Counts 2 and 3. The district court rejected both sets of claims in its denial of Stewart's motion to dismiss.

The claim that an indictment has resulted in multiplicitous convictions is reviewed de novo. United States v. Vargas-Castillo, 329 F.3d 715, 718-19 (9th Cir.2003). An indictment is multiplicitous when it charges multiple counts for a single offense, producing two penalties for one crime and thus raising double jeopardy questions. Id. However, two counts within an indictment are not multiplicitous if "each separately violated statutory provision requires proof of an additional fact which the other does not." Id.; see United States v. Stearns, 550 F.2d 1167, 1172 (9th Cir.1977) ("Congress has the power to establish that a single act constitutes more than one offense, at least as long as each offense requires proof of a fact the other does not."). We turn to the first claim of "multiplicity."

A. Counts 1 and 4 — Threatening to murder a federal judge, and soliciting another person to murder a federal judge

Count 1 alleged Stewart threatened to murder Judge Silver with the intent to impede, intimidate, or retaliate against her on account of the performance of her official duties, in violation of 18 U.S.C. § 115(a)(1)(B). Section 115(a)(1) provides in pertinent part:

Whoever . . . (B) threatens to assault, kidnap, or murder . . . a United States judge . . . with intent to impede, intimidate, or interfere with such . . . judge . . . while engaged in the performance of official duties, or with intent to retaliate against such . . . judge . . . on account of the performance of official duties, shall be punished. . . .

However, Count 4 alleged Stewart solicited another person to murder Judge Silver, in violation of 18 U.S.C. § 373(a). Section 373(a) provides in part:

Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned. . . .

Count 1 required proof Stewart threatened to murder Judge Silver; the participation of Weiss was unnecessary. On the other hand, Count 4 required proof Stewart solicited Weiss to murder Judge Silver; proof Stewart made a threat against her was...